Ricardo Antonio Welch, Jr. v. John Ashcroft, as Attorney General, Department of Justice

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 RICARDO ANTONIO WELCH, JR.,
Petitioner-Appellee,
v.
JOHN ASHCROFT, as Attorney
General, Department of Justice;
JAMES W. ZIGLAR, as Commissioner
of the Immigration and
Naturalization Service, Department
of Justice; LOUIS D. CROCETTI, JR.,
as Director, Baltimore District, No. 00-7665  Immigration and Naturalization
Service; DOUGLAS C. DEVENYNS, as
Warden, Wicomico County
Detention Center,
Respondents-Appellants.
CITIZENS AND IMMIGRANTS FOR EQUAL
JUSTICE; AMERICAN IMMIGRATION
LAWYERS ASSOCIATION; AMERICAN
CIVIL LIBERTIES UNION FOUNDATION,
Immigrants’ Rights Project,
Amici Curiae. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CA-99-2801-CCB)
Argued: June 5, 2001
Decided: June 19, 2002

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Before WIDENER and WILLIAMS, Circuit Judges, and
Robert R. BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Affirmed by published opinion. Senior Judge Beezer wrote the opin-
ion. Judge Widener wrote an opinion concurring in Judge Beezer’s
opinion except for the first paragraph of Part III A. 1. and Part VI. and
concurring in the judgment. Judge Williams wrote an opinion concur-
ring in the judgment.
COUNSEL
ARGUED: Earle Bronson Wilson, Office of Immigration Litigation,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellants. Mary Ellen Fleck, AKIN, GUMP,
STRAUSS, HAUER & FELD, L.L.P., Washington, D.C., for Appel-
lee. ON BRIEF: Stuart E. Schiffer, Acting Assistant Attorney Gen-
eral, Emily Anne Radford, Assistant Director, Office of Immigration
Litigation, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellants. Todd M. Stenerson,
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P., Washington,
D.C., for Appellee. Michael Maggio, MAGGIO & KATTAR, P.C.,
Washington, D.C.; Marvin E. Frankel, Jennifer L. Rochon,
KRAMER, LEVIN, NAFTALIS & FRANKEL, L.L.P., New York,
New York; Nancy Morawetz, Washington Square Legal Services,
Inc., NEW YORK UNIVERSITY SCHOOL OF LAW, New York,
New York, for Amici Curiae Citizens & Immigrants and Immigration
Lawyers. Judy Rabinowitz, Immigrants’ Rights Project, AMERICAN
CIVIL LIBERTIES UNION FOUNDATION, New York, New York;
Liliana M. Garces, Immigrants’ Rights Project, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION, Oakland, California, for
Amicus Curiae Foundation.
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OPINION
BEEZER, Senior Circuit Judge:
Attorney General John Ashcroft, Commissioner of the Immigration
and Naturalization Service James W. Ziglar, Director of the Immigra-
tion and Naturalization Service’s Baltimore District Louis D. Crocetti,
Jr., and Director of the Wicomico County Detention Center Douglas
C. Devenyns (collectively "DOJ") appeal the district court’s grant of
a petition by Ricardo Antonio Welch, Jr. ("Welch") for a writ of
habeas corpus. 101 F. Supp. 2d 347 (D. Md. 2000). We have jurisdic-
tion pursuant to 28 U.S.C. §§ 1292(a)(1) & 2253. See INS v. St. Cyr,
533 U.S. 289, ___, 121 S. Ct. 2271, 2287 (2001). We affirm.
I
Welch is a citizen of Panama who has been a permanent legal resi-
dent in the United States since he was ten years of age. Welch’s par-
ents, siblings and son are United States citizens. Welch served in the
United States Navy and Naval Reserve for six years and was honor-
ably discharged in 1994.
In the same year, Welch pleaded guilty to four State felony counts
in Maryland. While Welch was in State custody, the DOJ instituted
deportation1 proceedings against him and served him with an Order
to Show Cause. The DOJ asserted that Welch was deportable pursu-
ant to two subsections of former section 241 of the Immigration and
Naturalization Act based on his State felony convictions. See 8 U.S.C.
§ 1251(a)(2)(A)(iii) (1994) (authorizing deportation for conviction for
"aggravated felony"); id. § 1251 (a)(2)(C) (authorizing deportation for
conviction for unlawfully possessing or carrying firearm).2
Soon after Welch was released from State custody, an immigration
judge ordered Welch removed to Panama pursuant to former section
1The terms "deportation" and "removal" are synonymous in this opin-
ion.
2In 1996 Congress recodified former § 241 of the Immigration and
Naturalization Act, 8 U.S.C. § 1251 (1994), in substantially identical
form at § 237 of the Act as amended, 8 U.S.C. § 1227 (2001).
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241(a)(2)(A)(iii) of the Immigration and Naturalization Act. Welch
appealed the removal order to the Board of Immigration Appeals. The
Board rejected Welch’s appeal. The DOJ placed Welch in detention
pending removal. Welch’s removal was delayed pending receipt of
necessary documents from the government of Panama.
A Maryland court vacated Welch’s felony convictions on the
ground of ineffective assistance of counsel. Maryland entered into a
new plea bargain with Welch and dropped the felony charges against
him. Welch pleaded guilty to six misdemeanor charges of simple
assault and one misdemeanor charge of illegally wearing or carrying
a handgun. The State court imposed a combined sentence of less than
one year and credited Welch with time served for the entire sentence.
The DOJ ceased attempts to enforce the prior removal order that
had relied upon the vacated felony convictions. The DOJ moved to
reopen Welch’s removal proceedings on the ground that Welch’s new
firearm misdemeanor conviction rendered him deportable under for-
mer section 241(a)(2)(C) (now 237(a)(2)(C)) of the Immigration and
Naturalization Act, 8 U.S.C. § 1227(a)(2)(C) (2001). The DOJ contin-
ued to detain Welch on the ground that § 236(c) of the Immigration
and Naturalization Act, 8 U.S.C. § 1226(c) (2001), as amended by the
Antiterrorism and Effective Death Penalty Act of 1996, mandated
Welch’s detention pending a final removal determination. The Board
of Immigration Appeals granted the DOJ’s motion to reopen. The
DOJ served Welch with an amended Order to Show Cause relying on
§ 237(a)(2)(C) of the Immigration and Naturalization Act and his mis-
demeanor firearm conviction.
Welch filed a petition for a writ of habeas corpus with the United
States District Court for the District of Maryland. He also applied for
naturalization as a United States citizen.
An immigration judge terminated Welch’s reopened removal pro-
ceedings without prejudice based on the likely success of Welch’s
naturalization application and the presence of "exceptionally appeal-
ing humanitarian factors." The DOJ appealed. The Board of Immigra-
tion Appeals reversed and remanded.
The district court granted Welch’s habeas petition. 101 F. Supp. 2d
at 356. Relying on United States v. Salerno, 481 U.S. 739 (1987), the
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district court held that § 236(c) of the Immigration and Naturalization
Act "violated Welch’s substantive due process right, while detained
pending judicial proceedings, to receive a bail hearing in which a
judge would determine his flight risk and threat to the community."
Id. The court ordered the DOJ to "provide Welch with a bail hearing
before an immigration judge." Id.
An immigration judge conducted a bail hearing pursuant to the dis-
trict court’s order. The immigration judge concluded that Welch did
not pose a flight risk or community danger so as to preclude his
release pendente lite. The immigration judge ordered Welch enlarged
on $1,500 bond. So far as the record reveals, Welch remains free from
incarceration.
An immigration judge sua sponte ordered Welch removed based on
the amended Order to Show Cause. Welch and the DOJ jointly moved
in the district court to set aside this second removal order on the
ground that Welch had become eligible for discretionary cancellation
of removal. Immigration and Naturalization Act § 240A, 8 U.S.C.
§ 1229b. The district court granted the unopposed motion. Welch’s
removal proceedings remain open.
The DOJ appeals the district court’s order directing it to provide
Welch with a bail hearing with respect to his detention pendente lite.
II
The DOJ claims that Welch, as a removable alien, must be detained
without possibility of release pending a final removal determination,
pursuant to § 236(c) of the Immigration and Naturalization Act, 8
U.S.C. § 1226(c). Aliens in removal proceedings are generally eligi-
ble for discretionary release pendente lite unless restricted by
§ 236(c). See Immigration and Naturalization Act § 236(a). Subsec-
tion 236(c) says:
(1) Custody. The Attorney General shall take into custody
any alien who—
. . . .
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(B) is deportable by reason of having committed
any offense covered in section 1227(a)(2)
(A)(ii), (A)(iii), (B), (C), or (D) of this title,
. . . .
when the alien is released [upon serving his sen-
tence],[3] without regard to whether the alien is
released on parole, supervised release, or probation,
and without regard to whether the alien may be arrested
or imprisoned again for the same offense.
(2) Release. The Attorney General may release an alien
described in paragraph (1) only if the Attorney General
decides . . . that release of the alien from custody is
necessary [under the federal witness protection pro-
gram statute, 18 U.S.C. § 3521], and the alien satisfies
the Attorney General that the alien will not pose a dan-
ger . . . and is likely to appear for any scheduled pro-
ceeding.
Immigration and Naturalization Act § 236(c), 8 U.S.C. § 1226(c)
(emphasis added). The offenses enumerated in § 236(c)(1)(B) include
misdemeanors for carrying a firearm. See 8 U.S.C. § 1227(A)(2)(C).
Subsection 236(c) categorically bars the Attorney General from "re-
leas[ing] from custody" any alien convicted of an aggravated felony
or firearm offense who is not in the federal witness protection pro-
gram.
Although the DOJ maintains that Welch is deportable, his removal
is not certain. The DOJ does not challenge the district court’s ruling
that the permanent rules under the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 apply to Welch’s agency pro-
3Welch completed his sentence for his now-vacated felony convictions
in 1996, before § 236(c) took effect. Nevertheless, we agree with the dis-
trict court’s conclusion that § 236(c) applies to Welch. See 101 F. Supp.
2d at 352-52. In 1999, from the time Welch entered his second set of
guilty pleas until he was resentenced, he was in the constructive custody
of the State of Maryland. With resentencing came his "release."
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ceedings. The permanent rules, unlike the transitional rules that ini-
tially applied to removal proceedings following passage of the Illegal
Immigration Reform and Immigrant Responsibility Act, permit Welch
to apply for cancellation of removal so long as he has no felony con-
victions for purposes of the Immigration and Naturalization Act. See
Immigration and Naturalization Act § 240A, 8 U.S.C. 1229b(a)
(2001). A successful application for either citizenship or cancellation
of removal will effectively terminate the DOJ’s current efforts to
remove Welch.
III
The district court held that detention of Welch pendente lite with-
out the opportunity for a bail hearing violated his right to due process.
"[T]he Fifth Amendment entitles aliens to due process of law in
deportation proceedings." Reno v. Flores, 507 U.S. 292, 306 (1993).
The substantive component of due process "forbids [legislation] to
infringe certain ‘fundamental’ liberty interests at all, no matter what
process is provided, unless the infringement is narrowly tailored to
serve a compelling state interest." Id. at 301-02; see Hawkins v. Free-
man, 195 F.3d 732, 739 (4th Cir. 1999) (en banc). Infringements of
liberty interests that are not fundamental are subject to less exacting
scrutiny. See Washington v. Glucksberg, 521 U.S. 702, 722 (1997).4
A.
We begin our due process analysis with the history, practice, and
legal tradition of the liberty interest claimed by Welch. Glucksberg,
521 U.S. at 710; Hawkins, 195 F.3d at 739. As "[t]here is no general
liberty interest in being free of even the most arbitrary and capricious
government action," we are required to "carefully state[ ]" the liberty
interest that we consider. Hawkins, 195 F.3d at 739. "By this means,
the Nation’s history, legal traditions, and practices . . . provide the
4Even substantively acceptable deprivations of liberty interests "must
still be implemented in a fair manner." Salerno, 481 U.S. at 746. But in
Welch’s case there is no procedure to implement. Bail pendente lite must
be denied as a matter of law. The procedural due process inquiry col-
lapses into the substantive one. See Kofa v. United States INS, 60 F.3d
1084, 1091 n.7 (4th Cir. 1995) (en banc).
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crucial guideposts for responsible decisionmaking, that would be
threatened by analyzing the claimed right at too general a level." Id.
(internal quotation marks and citations omitted). Central to our due
process inquiry, Welch’s detention raises the question whether a per-
son has a constitutional right to freedom from incarceration absent a
judicial finding of unacceptable flight risk or danger to the commu-
nity, where probable cause for removal from the United States exists
but a final determination has not been made.
1.
Traditional Anglo-American law generally provides an opportunity
to seek release from governmental incarceration pendente lite. Black-
stone acknowledges "[t]he personal liberty of individuals . . . without
imprisonment or restraint, unless by due course of law" as an absolute
personal right. 1 William Blackstone, Commentaries *134. Black-
stone teaches that for a judicial officer "to refuse or delay to bail any
person bailable, is an offence against the liberty of the subject . . . by
the common law: as well as by . . . statute . . . and the habeas corpus
act." 4 id. *297 (emphasis in original). See also Salerno, 481 U.S. at
749 (noting "‘general rule’ . . . that the government may not detain
a person prior to a judgment of guilt in a criminal trial" subject to sig-
nificant exceptions "in special circumstances").
Blackstone notes that every defendant is not "bailable" and sug-
gests that the legislature can prohibit bail altogether. Id. But he also
writes that a mandatory detention regime is unwise and was unknown
in English law:
[T]he court of king’s bench . . . may bail for any crime
whatsoever . . . according to the circumstances of the case.
And herein the wisdom of the law is very manifest. To allow
bail to be taken commonly for . . . enormous crimes, would
greatly tend to elude the public justice: and yet there are
cases, though they rarely happen, in which it would be hard
and unjust to confine a man in prison, though accused even
of the greatest offence. The law has therefore provided one
court, and only one, which has a discretionary power of
bailing in any case . . . .
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4 id. 299 (emphasis added).
Few reported American cases squarely address the right to bail
pendente lite, apparently because of the rarity in American law of
mandatory pretrial detention of adults of sound mind. See United
States v. Melendez-Carrion, 790 F.2d 984, 988, 997 (2d Cir. 1986)
(opinion of Newman, J.). Most cases deal with pretrial detention with
at least a discretionary avenue for release. See, e.g., Flores, 507 U.S.
at 296; Salerno, 481 U.S. at 750; Carlson v. Landon, 342 U.S. 524,
538 (1952). When mandatory detention statutes have appeared out-
side the capital context, they have generally met with a hostile reac-
tion. Compare, e.g., United States v. Egorov, 319 F.2d 817 (2d Cir.
1963) (per curiam) (upholding mandatory detention for aliens accused
of capital crimes), with Chi Thon Ngo v. INS, 192 F.3d 390 (3d Cir.
1999) (granting parole hearing to convicted aliens held in mandatory
detention under final removal order).
We observe that a tradition permitting brief mandatory pretrial
detention does exist in the area of interstate extradition. One court has
stated that it is the "majority view" that a defendant detained on a
State governor’s warrant pending extradition to another State has no
constitutional right to bail. Meechaicum v. Fountain, 696 F.2d 790,
792 (10th Cir. 1983) (per curiam). This detention is justified, accord-
ing to the Meechaicum court, in order to keep the detainee "readily
available to be turned over to those who arrive to return him" to the
other State for trial. Id.
2.
The practice of mandatory detention of alien criminal convicts
pending their final removal orders does not appear to have arisen in
American law before the early part of the twentieth Century. In recent
decades Congress has repeatedly revisited both the categories of
crimes requiring alien deportation and the opportunities for such
aliens’ release pendente lite.5 The Immigration Act of 1917 made
aliens convicted of crimes of "moral turpitude" and receiving sen-
5A more detailed history of mandatory alien detention is found in Sen.
William V. Roth, Jr., Criminal Aliens in the United States, S. Rep. No.
104-48 (April 7, 1995), reprinted in 1995 WL 170285.
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tences of at least one year deportable. An Act to Regulate the Immi-
gration of Aliens to, and the Residence of Aliens in, the United States,
ch. 29, § 19, 39 Stat. 874, 889 (1917). Such aliens were eligible for
discretionary bonded release pending adjudication. Id. § 20, 39 Stat.
at 881. The Immigration and Nationality Act of 1952 added drug and
firearm crimes to the list of deportable offenses. Immigration and
Naturalization Act § 241(a)(4)(A). The statute also eliminated the
bond requirement for release. Id. § 242(a)(1)(C).
In 1988, the Anti-Drug Abuse Act created the "aggravated felon"
category of deportable alien. Anti-Drug Abuse Act § 7342, amending
Immigration and Naturalization Act § 101(a), 8 U.S.C. § 1251(a)
(1988); see 8 U.S.C.S. § 1101 note. The Anti-Drug Abuse Act
required alien detention pending a final deportation order. 8 U.S.C.
§ 1252(a)(2) (1988). This mandatory detention provision, apparently
the first in American immigration law, was quickly amended to apply
only to felons who had not been lawfully admitted to the United
States. Id. (1992); see 8 U.S.C.S. § 1101 note (1992).
In 1996, the Antiterrorism and Effective Death Penalty Act
expanded the list of crimes requiring detention and removal and elim-
inated the Anti-Drug Abuse Act’s exception for lawful entrants.
Antiterrorism and Effective Death Penalty Act § 306(a)(2), 440(c)(1),
8 U.S.C. § 1252 (1996). The Illegal Immigration Reform and Immi-
grant Responsibility Act temporarily restored the exception a few
months later.6 Illegal Immigration Reform and Immigrant Responsi-
bility Act § 303(b)(3). After the transitional rules under that Act
6The detention provision of the Immigration and Naturalization Act,
§ 236(c), as amended by the Illegal Immigration Reform and Immigrant
Responsibility Act was originally intended to apply to all aliens placed
in removal proceedings after April 1, 1997. See Illegal Immigration
Reform and Immigrant Responsibility Act § 303(b)(1). At the INS’s
request, Congress provided for a two-year grace period before § 236(c)
took effect upon a showing that the INS lacked the resources to imple-
ment its mandatory detention requirements. The grace period was
invoked on October 9, 1996. The "Transitional Period Custody Rules" in
effect during the grace period temporarily restored the exception from
mandatory detention pendente lite for lawful entrants that existed before
the passage of the Antiterrorism and Effective Death Penalty Act of
1996.
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expired in 1998, both lawfully and unlawfully admitted aliens with
criminal convictions requiring deportation once more faced manda-
tory detention pending their final removal orders. Illegal Immigration
Reform and Immigrant Responsibility Act § 236(c), 8 U.S.C.
§ 1226(c) (1999).7
B.
Welch asserted in the district court that his mandatory incarceration
implicates a fundamental liberty interest. 101 F. Supp. 2d at 353.
Welch cited Salerno for the proposition that strict scrutiny is applica-
ble. Id. at 354. The DOJ argued that only rational basis review
applies, citing Reno v. Flores, 507 U.S. 292 (1993). 101 F. Supp. 2d
at 353. The district court agreed with Welch and, relying on Salerno,
decided that the liberty interest Welch asserts is fundamental and that
strict scrutiny should be applied to detention pendente lite. Id.
The district court distinguishes the cases of Salerno and Welch
from Flores. 101 F. Supp. 2d at 353-54. Salerno upholds pretrial
detention of dangerous persons accused of serious felonies. Flores
holds that detention pendente lite of juvenile aliens convicted of
crimes permitting deportation does not infringe a fundamental right.
101 F. Supp. 2d at 354. The district court observes that the detainees
in Flores, unlike Salerno or Welch, were juveniles and as such are
7Although we accept for purposes of this opinion the parties’ position
that § 236(c) of the Immigration and Naturalization Act mandates
Welch’s incarceration, we note that the provision may arguably be inter-
preted differently. Subsection 236(c) bars only "release from custody."
§ 236(c)(2). But "custody" need not rise to the level of physical deten-
tion. See Taylor v. Taintor, 16 Wall. (U.S.) 366, 371 (1873) ("When bail
is given, the principal is regarded as delivered to the custody of his sure-
ties") (emphasis added). See also Albright v. Oliver, 510 U.S. 266, 278-
79 (1994) (Ginsburg, J., concurring) ("[A] defendant released pretrial . . .
is scarcely at liberty[;] . . . he remains apprehended, arrested in his move-
ments, indeed ‘seized’ for trial, so long as he is bound to appear in court
and answer the state’s charges"). Cf. Zadvydas v. Davis, 583 U.S. 678,
___, 121 S. Ct. 2491, 2498 (2001) ("[W]hen an Act of Congress raises
a serious doubt as to its constitutionality, this Court will first ascertain
whether a construction of the statute is fairly possible by which the ques-
tion may be avoided").
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"always in some form of custody." Id. (quoting Flores, 507 U.S. at
302).
Concluding that a fundamental interest is infringed, the district
court applies strict scrutiny to Welch’s detention pursuant to § 236(c).
101 F. Supp. 2d at 354-55. The district court holds that, under strict
scrutiny, the Government’s "admitted[ ]" interest in confining appar-
ently dangerous and removable aliens prior to a removal determina-
tion does not justify § 236(c)’s "blanket, irrefutable presumption"
prohibiting release pending adjudication. Id. at 354.8
C.
We cannot accept the district court’s conclusion of law that the
right to be free from restraint pendente lite is so fundamental as to
require strict scrutiny of § 236(c). In Salerno, the sole opinion on
which the district court relied, the Supreme Court describes liberty
from physical restraint as being of a "fundamental nature." 481 U.S.
at 750. But the Salerno Court goes on to say that it cannot "categori-
cally state that pretrial detention ‘offends some principle of justice so
rooted in the traditions and conscience of our people as to be ranked
as fundamental.’" 481 U.S. at 751 (quoting Snyder v. Massachusetts,
291 U.S. 97, 105 (1934)). In Zadvydas v. Davis, 583 U.S. 678, 121
S. Ct. 2491 (2001), the Court says that "[f]reedom from imprisonment
—from government custody, detention, or other forms of physical
restraint—lies at the heart of the liberty th[e] [Fifth Amendment] pro-
tects." 121 S. Ct. at 2498. The Court neither calls that right "funda-
mental" nor holds that strict scrutiny applies. See also Foucha v.
Louisiana, 504 U.S. 71, 112 S. Ct. 1780 (1992) (describing "freedom
from physical restraint" as being "at the core of the Fifth Amend-
ment," with only concurring opinion dubbing it "fundamental right").
The liberty interest implicated by incarceration pending a final
removal order is unquestionably significant. Yet the Supreme Court
has never added freedom from incarceration to the short list of funda-
8The district court did not say whether it concluded that § 236(c) is
unconstitutional on its face, as applied to Welch, or both. Welch argues
here that the statute is invalid both on its face and as applied.
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mental rights. The DOJ urges that we should find a fundamental lib-
erty interest only with the greatest caution. We agree.
The very flexibility of due process leaves us "reluctant to expand
the concept" into uncharted areas. Hawkins, 195 F.3d at 738. The sep-
aration of powers that "keeps courts without certain traditional bounds
vis-a-vis the other branches," Lewis v. Casey, 518 U.S. 343, 353 n.3
(1996), has particular force in immigration and removal:
Any rule of constitutional law that would inhibit the flexibil-
ity of the political branches of government to respond to
changing world conditions should be adopted only with the
greatest caution. The reasons that preclude judicial review
of political questions also dictate a narrow standard of
review of decisions made by the Congress . . . in the area
of immigration and naturalization.
Palma v. Verdeyen, 676 F.2d 100, 104 (4th Cir. 1982) (quoting Mat-
thews v. Diaz, 426 U.S. 67, 81-82 (1976)).
The word "fundamental" is in any event a term of art employed to
"rein in the subjective elements that are necessarily present in due-
process judicial review" and to promote the "balancing of competing
interests in every [such] case." Hawkins, 195 F.3d at 739 n.2 (quoting
Glucksberg, 521 U.S. at 722). The semantics of fundamental rights
analysis must not finesse the central issue in this case: the circum-
stances, if any, under which Congress may deny bail to apparently
deportable aliens.
IV
If detention of alien convicts pending removal does not implicate
a fundamental liberty interest, we apply a less exacting inquiry to
determine whether § 236(c) comports with substantive due process.
Although there can be "no mechanical test" for due process, Shirley
v. State, 528 F.2d 819, 822 (4th Cir. 1975), the Supreme Court and
we employ a consistent inquiry when testing detention pendente lite
against due process guarantees. See Hill v. Nicodemus, 979 F.2d 987,
990-91 (4th Cir. 1992); Flores, 507 U.S. at 303; Salerno, 481 U.S. at
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746-47. First, such detention must be reasonably related to legitimate
government interests. Second, "[i]t is axiomatic that ‘[d]ue process
requires that a pretrial detainee not be punished.’" Schall v. Martin,
467 U.S. 253, 269 (1984) (quoting Bell v. Wolfish, 441 U.S. 520, 535
n.16 (1979)). Detention pendente lite must not "constitute[ ] imper-
missible punishment before [adjudication]" but must instead be
merely a non-punitive, "regulatory" measure. We consider
whether the [detention] is imposed for the purpose of pun-
ishment or whether it is but an incident of some other legiti-
mate governmental purpose. Absent a showing of an express
intent to punish on the part of the State, that determination
generally will turn on [(1)] whether an alternative purpose
to which [the disability] may rationally be connected is
assignable for it, and [(2)] whether it appears excessive in
relation to the alternative purpose . . . .
Martin, 467 U.S. at 269. Accord Flores, 507 U.S. at 303; Salerno, 481
U.S. at 747; Hill, 979 F.2d at 990-91; see also Zadvydas, 121 S. Ct.
at 2498-99 (holding that civil detention in general requires special
non-punitive circumstances that outweigh detainee’s liberty interest in
freedom from physical restraint) (citing Kansas v. Hendricks, 521
U.S. 346, 356 (1997)).
A.
The mandatory detention statute, on its face, reveals no punitive
intent. Deportation itself is not punitive. Flemming v. Nestor, 363
U.S. 603, 616 (1960). Mandatory detention pending a final removal
decision bears a reasonable relationship to legitimate government
interests. Despite the lack of express punitive intent, however, the
statute may still be punitive if it has no purpose other than punish-
ment, or is excessive in light of its goals. See Martin, 467 U.S. at 269.
The DOJ asserts two principal interests in support of § 236(c).
First, mandatory detention reduces the flight risk of aliens facing
probable removal. The DOJ points to Congressional findings and
reports to the effect that aliens facing removal pose significant flight
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risks. See, e.g., Sen. William V. Roth, Jr., Criminal Aliens in the
United States, S. Rep. No. 104-48 (April 7, 1995), reprinted in 1995
WL 170285 (finding that 20 percent of criminal aliens not detained
pendente lite fail to appear for deportation hearings). Although Con-
gress has a legitimate interest in lowering convicted aliens’ flight risk
and § 236(c) furthers this goal, the constitutionality of the statute can-
not rest on this interest alone. The Supreme Court has said that a con-
cern over flight risk, however legitimate, cannot by itself justify
mandatory detention before trial. See Salerno, 481 U.S. at 754-55.
"When the Government[’s] . . . only interest is in preventing flight,
bail must be set by a court at a sum designed to ensure that goal, and
no more." Id. at 754 (emphases added); see also Kansas v. Hendricks,
521 U.S. 346, 358 (1997) ("A finding of dangerousness, standing
alone, is ordinarily not a sufficient ground upon which to justify
indefinite involuntary commitment").
The DOJ asserts a second important interest. The Government
seeks to protect the community from wrongful acts by dangerous
aliens facing expulsion. Danger is certainly a matter of legitimate
public concern. But here Congress bases the presumption of danger-
ousness on prior acts, in the form of prior convictions. The sentence
for these convictions has already been imposed by a State court and
served by Welch. Mandatory detention based on prior convictions, in
a civil removal proceeding, must not add to the punishment adminis-
tered for those convictions in the first place. See Martin, 467 U.S. at
269.
Both purposes relied upon by the Government appear to support
mandatory detention under § 236(c). We next determine whether
mandatory detention pendente lite based on a record of prior criminal
conduct is a reasonable and not excessive way to prevent flight risk
and to protect the community. See Martin, 467 U.S. at 269; Hill, 979
F.2d at 990-91. We analyze the statute both on its face and as applied
to Welch.
B.
"A facial challenge to a legislative Act is, of course, the most diffi-
cult challenge to mount successfully, since the challenger must estab-
lish that no set of circumstances exists under which the Act would be
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valid." Salerno, 481 U.S. at 745. We cannot say that mandatory
detention pendente lite of aliens convicted of crimes involving vio-
lence, contraband or dangerous instrumentalities violates due process
on its face.
A total bar against individual findings of "dangerous" is without
question a blunt tool by which to restrict personal liberty. Carlson,
342 U.S. at 538 & n.31. On the other hand, mandatory detention here
is based upon prior convictions, which enjoy a unique status in due
process analysis. At least in the criminal context, "any fact other than
a prior conviction that increases the maximum penalty for a crime
must be charged in an indictment, submitted to a jury, and proven
beyond a reasonable doubt." Apprendi v. United States, 530 U.S. 466,
477 (2000) (quoting Jones v. United States, 526 U.S. 227, 243 n.6)
(parentheses omitted) (emphasis added). It follows that prior convic-
tions as a basis for regulatory detention require fewer due process
safeguards as well. "One basis for [this] . . . constitutional distinction
is not hard to see: unlike virtually any other consideration used to
enlarge the possible [deprivation] . . . a prior conviction must itself
have been established through procedures satisfying the fair notice,
reasonable doubt, and jury trial guarantees." Jones, 526 U.S. at 249.
An infringement of liberty on account of past acts suggests that the
purpose of the infringement may be punitive rather than regulatory.
See Nestor, 363 U.S. at 619-20. But present consequences based on
past acts are not always punitive and often serve purely regulatory
purposes. Basing detention here on carefully defined categories of
past convictions provides a clear, definite standard for § 236(c)’s
applicability. See Carlson, 342 U.S. at 543 (noting that clear stan-
dards for physical detention can be salutary for due process purposes).
State or federal convicts subject to § 236(c) may reasonably be
assumed to have in fact performed the dangerous acts that constitute
the crimes for which they were convicted. Aliens committing such
acts should be aware that doing so may subject them to drastic and
unwelcome consequences above and beyond mere judicial punish-
ment, up to and including removal. Persons facing removal have pre-
dictable incentives to abscond from custody and predictable
indifference to lesser penalties for future wrongful acts committed
within the jurisdiction of the United States.
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Historically, the Government faces significant practical and admin-
istrative challenges in dealing with aliens. Congress’ power to act is
at its height in the context of foreign affairs in general and immigra-
tion in particular. See Rostker v. Goldberg, 453 U.S. 57, 64 (1981);
Fiallo v. Bell, 430 U.S. 787, 792 (1977). So long as § 236(c) of the
Immigration and Naturalization Act does not violate the Constitu-
tion’s guarantees, the legislative intent will be given effect. See
Fiallo, 430 U.S. at 792; Carlson, 342 U.S. at 537.
The mandatory detention pendente lite of apparently deportable
aliens does not violate due process under every possible set of cir-
cumstances. We are not able to sustain Welch’s facial challenge to
§ 236(c).
C.
We examine Welch’s particular circumstances to determine
whether the statute violates due process as applied in his case. We
conclude that it does. Fourteen months of incarceration pendente lite
of a longtime resident alien with extensive community ties, with no
chance of release and no speedy adjudication rights as in criminal
proceedings, together lead us to conclude that the circumstances of
Welch’s detention constitute punishment without trial.
1.
The DOJ insists that Welch, as an alien convicted of a firearm
crime, is not entitled to the full panoply of due process rights. The
DOJ points to Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999), the
first reported circuit case to address the constitutionality of § 236(c).
In Parra, a criminal alien in the United States challenged § 236(c) on
due process grounds. 172 F.3d at 955-56. The Parra court relies upon
Congress’ plenary power over aliens to uphold the statute. Id. at 958.
In light of the Supreme Court’s later clarification of this plenary
power doctrine in Zadvydas, we decline to adopt Parra’s reasoning.
We repeat the axiom that "Congress has virtually plenary authority
over the admission of aliens." Palma, 676 F.2d at 103. "Over no con-
ceivable subject is the legislative power of Congress more complete,"
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and in the immigration area "Congress regularly makes rules that
would be unacceptable if applied to citizens." Fiallo, 430 U.S. at 792.
In Zadvydas, however, the Supreme Court says that the plenary power
doctrine is largely inapplicable to aliens who have already entered the
United States, even after becoming subject to a final removal order.
121 S. Ct. at 2500-02. Zadvydas thus rejects the proposition, on which
the Parra court squarely relies,9 that aliens under final removal orders
have forfeited any "legal right to remain in the United States." Com-
pare Parra, 172 F.3d at 958, with Zadvydas, 121 S. Ct. at 2502.
The plenary power doctrine does not become entirely inapplicable
to aliens once they have entered the United States. See, e.g., Flores,
507 U.S. at 305-06 (relying in part on plenary power doctrine to
uphold brief detention of dangerous juvenile aliens pending adjudica-
tion); Carlson, 342 U.S. at 542-43 (relying on doctrine to uphold
detention of dangerous Communist aliens pending adjudication); see
also Palma, 676 F.2d at 104. But "once an alien gains admission to
this country and begins to develop the ties that go with permanent res-
idence his constitutional status changes accordingly." Vancouver
Women’s Health Collective Soc’y v. A.H. Robins Co., 820 F.3d 1359,
1363 (4th Cir. 1987). See also United States v. Verdugo-Urquidez,
494 U.S. 259, 271 (1990) (noting that voluntarily resident aliens who
develop strong domestic ties enjoy strengthened civil rights).
Zadvydas requires us to consider whether Welch, as a longtime res-
ident alien with extensive domestic connections, is entitled to the due
process protections that citizens enjoy.
2.
The governmental interests supporting detention pendente lite are
relatively slight in Welch’s case. Little flight risk appears. Welch has
never sought to elude the INS despite being at liberty for months
9Parra also argued, citing Flores and Carlson, that § 236(c)’s elimina-
tion of discretionary release reduces the statute’s due process problems.
172 F.3d at 958. In fact, Flores and Carlson rely heavily on the existence
and exercise of executive discretion as ameliorating the due process dif-
ficulties posed by detention pendente lite. See Flores, 507 U.S. at 309;
Carlson, 342 U.S. at 538 & n.31.
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while appealing his first removal order. The DOJ does not contest the
immigration judge’s express finding that his case presents "exception-
ally appealing humanitarian factors." and that his naturalization appli-
cation is likely to succeed. Where flight risk is concerned, "[t]here is
a clear difference . . . between facing possible deportation and facing
certain deportation." St. Cyr, 121 S. Ct. at 2293 (emphases added).
The record provides little support for a dangerous alien finding.
Welch’s criminal record in Maryland, consisting entirely of misde-
meanors, provides the only record evidence that Welch is anything
but a credit to his community.10 The record before us provides thin
support for an irrebuttable presumption that Welch is so dangerous as
to preclude his release pending resolution of his civil removal pro-
ceeding.
In Kofa v. United States INS, 60 F.3d 1084 (4th Cir. 1995) (en
banc), we employed "two principles of statutory construction[,] plain
English and common sense," to explain the operation of a statute bar-
ring discretionary cancellation of removal for aggravated felons. Id.
at 1088. We interpreted the statute as establishing a presumption that
an "alien constitutes a danger to the community because he has been
convicted of a particularly serious crime, so once the particularly
serious crime determination is made, the alien is ineligible for [can-
cellation] without a separate finding on dangerousness." Id. (emphasis
added). In other words, the reason that aggravated felony convictions
may form a sensible basis for a rebuttable presumption of dangerous-
ness is that an aggravated felony is a "particularly serious crime." We
doubt that common sense similarly permits an irrebuttable presump-
tion of dangerousness based on a single firearm misdemeanor.
The DOJ urges us to consider not just Welch’s misdemeanor plea,
but also the dangerous acts underlying his vacated felony convictions.
10We note the absence of any claim in the record that Welch’s conduct
has been that of a terrorist, or that he is or has ever been implicated in
ongoing dangerous activities such as terrorism or organized crime. Cf.
Zadvydas, 121 S. Ct. at 2502 (noting that "terrorism or other special cir-
cumstances" might justify special "forms of preventive detention and . . .
heightened deference to the judgments of the political branch with
respect to matters of national security").
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But the DOJ has already conceded this argument. We agree that
expunged State convictions may remain convictions for purposes of
the Immigration and Naturalization Act so long as there was both (1)
a finding or confession of guilt and (2) a punishment imposed. See
Immigration and Naturalization Act § 101(a)(48)(A), 8 U.S.C.
§ 1101(a)(48)(A) (2001).11 But the DOJ has abandoned enforcement
of Welch’s first removal order. The DOJ did not appeal the district
court’s ruling that Welch is eligible to apply for cancellation of
removal under § 240A of the Immigration and Naturalization Act, 8
U.S.C. § 1229b(A), even though cancellation is expressly made avail-
able only to removable aliens with no aggravated felony convictions
for purposes of the Act. In fact, the DOJ joined Welch’s motion to
stay his removal proceeding on the explicit ground that he was eligi-
ble for § 240A cancellation. The DOJ cannot contend that Welch’s
vacated convictions are irrelevant to whether he should be removed,
yet relevant to whether he is dangerous pending a removal determina-
tion.
Finally, we examine the length of Welch’s detention to determine
whether it is "excessive" in relation to the statute’s goals. The point
at which extended detention pendente lite will violate due process
depends upon such factors as the nature of the deprivation, see Nes-
tor, 363 U.S. at 617; Wong Wing v. United States, 163 U.S. 228, 241
(1896); the conditions of confinement, see Martin, 467 U.S. at 270;
Bell, 441 U.S. 520, 536-37 (1979); the procedures afforded detainees
prior to adjudication, see Baker v. McCollan, 443 U.S. 137, 145
(1979); Gerstein v. Pugh, 420 U.S. 103, 112-13 (1975); and the justi-
fication for the continued detention. See Bell, 441 U.S. at 539-40;
United States v. Johnson, 732 F.2d 379, 381 (4th Cir. 1984). The
actual length of the detention is a cornerstone of the inquiry. See Zad-
vydas, 121 S. Ct. at 2503.
The short maximum duration of most pretrial detention statutes is
significant. See, e.g., Martin, 467 U.S. at 270 (17 days); United States
11We note, however, that § 101(a)(48)(A) of the Immigration and Nat-
uralization Act was intended to address strictly rehabilitative expunge-
ments of otherwise valid convictions. Yanez-Popp v. INS, 998 F.2d 231,
234-37 (4th Cir. 1993). Welch’s felony convictions were vacated, not for
rehabilitative purposes, but for ineffective assistance of counsel.
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v. Edwards, 430 A.2d 1321 (D.C. App. 1981) (en banc) (60 days).
Long pretrial detentions are generally upheld only where the detain-
ee’s own aggressive procedural tactics are the chief cause of the
delay. See, e.g., Doherty v. Thornburgh, 943 F.2d 204 (2d Cir. 1991)
(8 years); Dor v. Dist. Dir., 891 F.2d 997 (2d Cir. 1989) (5 years).
In Zadvydas, the Supreme Court questions the constitutionality of
the detention of aliens after a final removal order but before actual
removal. 121 S. Ct. at 2503. Detention pending actual removal fea-
tures a clearly identifiable event marking completion of the adminis-
trative process: actual removal. Nevertheless, Welch enjoys the
benefit of no deadline by which actual removal must be accomplished
following a final removal order, and removal may prove entirely
impracticable. The Zadvydas Court stresses repeatedly that post-order
detention may be "indefinite, perhaps permanent." Id. Welch’s deten-
tion pending a final removal order is similarly indefinite. Like the
post-order detention in Zadvydas, Welch’s detention features a clearly
identifiable event marking completion of the detention period (i.e.,
issuance of a final order), but no clearly identifiable deadline by
which that event must take place.12 Also, like the aliens in Zadvydas,
Welch is not himself the cause of the delay in completion.
The Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., adopts a pre-
sumptive limit of 90 days for pretrial detention in the criminal con-
text. Congress has adopted the same 90-day limit for the mandatory
detention of deportable aliens like Welch after they are finally ordered
removed. 8 U.S.C. § 1231(a)(2); see Zadvydas, 121 S. Ct. at 2495.
Post-order detention of aliens may continue past 90 days, but only
after an individual administrative review. 121 S. Ct. at 2495. In Zad-
vydas, the Court imposes a presumptive six-month upper limit on
even this optional detention period. Id. at 2505.
Welch, a prima facie deportable alien, does not present as compel-
ling a case for either mandatory or discretionary detention as the
12Welch’s detention would not necessarily end upon issuance of a final
removal order. He would continue to be detained until actual removal is
accomplished. We note that he has been subject to a previous final
removal order once before, however, and that his actual removal to Pan-
ama proved impracticable on that occasion.
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aliens in Zadvydas, who were convicted felons already subject to final
removal orders. Yet Welch’s 14 months in detention is five months
longer than the 90-day § 1231(a)(2) and six-month Zadvydas limits
combined.
We consider fourteen months’ incarceration before adjudication, as
applied to Welch, to fall outside any range that comports with due
process in these circumstances.
V
The district court’s grant of Welch’s petition did not trench upon
executive discretion, for no such discretion existed. The district court
judgment does not order the DOJ to release Welch from custody. The
judgment merely orders a bail hearing. The DOJ was able to present,
and the immigration judge was free to consider, evidence of flight risk
and dangerousness at the bail hearing. Yet the immigration judge
found Welch fit for release and enlarged him on relatively minimal
bond.
As a political branch enacting broad statutes, Congress can neither
foresee nor address every conceivable set of circumstances under
which government power is exercised against individuals. Where
Congress eliminates executive discretion, courts remain as defenders
of personal liberty in individual situations. The separation of powers
is not offended by directing the executive administrative process to
include bail hearings pendente lite in removal proceedings.
VI
Welch’s 14-month detention without a bond hearing did not contra-
vene the dictates of § 236(c). After carefully considering all the cir-
cumstances reflected in the record, we are convinced that Welch’s
detention constitutes punishment without the benefit of a trial. The
district court’s judgment granting Welch’s petition for a writ of
habeas corpus is
AFFIRMED.13
13As the record does not indicate that Welch has been returned to
detention, we do not order his release pending issuance of the mandate.
If Welch is in fact under detention, he may seek issuance of the writ from
the district court.
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WIDENER, Circuit Judge, concurring:
I concur in the result reached in the opinion of Judge Beezer, which
is the decision of the court.
I concur in all of the opinion of Judge Beezer except the first para-
graph of Part III A. 1. of the opinion which is found on page 8 of the
circulated slip opinion, and the penultimate sentence of the text of the
opinion found in Part VI thereof on page 22 of the circulated slip
opinion.
For that part I have just mentioned with respect to Part III. A. 1.,
although in different context, I would substitute a discussion of the
bail clause of the Eighth Amendment based on that found in Carlson
v. Landon, 342 U.S. 524 at p. 545 (1952).
As for the sentence in Part VI of the opinion, I would substitute the
following:
After carefully considering all the circumstances reflected
in the record, we are of opinion that Welch is a more worthy
plaintiff than Zadvydas, and, having been confined for more
than 6 months, is entitled to the presumption outlined in
Zadvydas v. Davis, 533 U.S. at 699-701, that his continued
detention is unlawful, the Attorney General having not
shown there is a significant likelihood of removal in the rea-
sonably foreseeable future.
I also emphasize an additional reason for my joining in the holding
of this case that 8 U.S.C. § 1226(c) is invalid as applied to Welch.
Although the Attorney General is the party in this case, as well as the
government’s attorney, he has not relied either on national security or
foreign policy as a reason for the continued detention of Welch. In
either of those fields, his wishes are virtually unassailable.
WILLIAMS, Circuit Judge, concurring in the judgment:
I agree with the majority’s conclusion that 8 U.S.C.A. § 1226(c)
(West 1999 & Supp. 2001), while facially constitutional, is unconsti-
23 WELCH v. ASHCROFT

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tutional as applied to Welch. I also agree with the majority’s rejection
of a fundamental rights approach. I write separately to further illumi-
nate the extent to which I believe Zadvydas v. Davis, 533 U.S. 678
(2001), should guide our resolution of this appeal.
I
In Zadvydas, the Supreme Court evaluated the constitutionality of
8 U.S.C.A. § 1231(a)(6) (West 1999 & Supp. 2001), which is the stat-
utory provision applicable to "post-removal-period detention." Zadvy-
das, 533 U.S. at 683. While recognizing that Congress has "broad
power over naturalization and immigration," Mathews v. Diaz, 426
U.S. 67, 79-80 (1976), the Court reaffirmed the principle that Con-
gress’s authority over aliens is limited by the Due Process Clause.
Zadvydas, 533 U.S. at 693 ("[T]he Due Process Clause applies to all
‘persons’ within the United States, including aliens."). Animated by
the constitutional implications of a statute authorizing indefinite
detention of aliens, the Zadvydas Court construed § 1231(a)(6) as
containing an implicit reasonableness limitation and adopted six
months as the threshold period by which habeas courts should evalu-
ate the reasonableness of the post-removal-period detention, holding
that after six months, detention would be considered presumptively
unreasonable. Id. at 701.
II
Each circuit that has addressed mandatory detention under
§ 1226(c) following Zadvydas has concluded that the application of
the statute violated the petitioner’s due process rights. Hoang v. Com-
fort, 282 F.3d 1247 (10th Cir. 2002), petition for cert. filed, ___
U.S.L.W. ___ (U.S. May 3, 2002) (No. 01-1616); Kim v. Ziglar, 276
F.3d 523 (9th Cir. 2002), petition for cert. filed, 70 U.S.L.W. 3655
(U.S. April 9, 2002) (No. 01-1491); Patel v. Zemski, 275 F.3d 299 (3d
Cir. 2001). The Seventh Circuit is the only circuit to have concluded
that § 1226(c) is constitutional, and it did so prior to the Supreme
Court’s opinion in Zadvydas. Parra v. Perryman, 172 F.3d 954 (7th
Cir. 1999). I agree with the Third, Ninth, and Tenth Circuits that the
Seventh Circuit’s approach is no longer viable for two reasons. First,
to the extent that Parra relied on the plenary powers doctrine, Zadvy-
das has undercut its reasoning. Second, to the extent that Parra relied
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on the argument that deportation is inevitable for aliens who have
committed aggravated offenses, the Supreme Court in INS v. St. Cyr,
533 U.S. 289, 326 (2001), has undercut this reasoning by rendering
discretionary cancellation of removal available for a large class of
aliens who have committed aggravated offenses. Indeed, the Govern-
ment in this case joined Welch’s motion to set aside his most recent
removal order on the ground that he is eligible for discretionary can-
cellation. It would thus appear that Welch has a real likelihood of
avoiding deportation, further distinguishing this case from Parra.
Although the circuits that have addressed the constitutionality of
§ 1226(c) post-Zadvydas have agreed that it was unconstitutional as
applied, they have utilized somewhat different analytical frameworks,
with the Tenth and Third Circuits relying upon a fundamental rights
approach, and the Ninth Circuit eschewing a fundamental rights
approach in favor of the "special justification" standard set forth in
Zadvydas. Kim, 276 F.3d at 530 ("Following Zadvydas, we thus must
analyze § 1226(c) to determine whether the government has provided
a sufficiently strong ‘special justification’ to justify civil detention of
a lawful permanent resident alien.").
For the reasons stated in Section III C. of the majority opinion, ante
at 12-13, I agree that an alien’s right to be free from detention pen-
dente lite is not a "fundamental" right, which would require strict
scrutiny of § 1226(c). Significantly, the Zadvydas Court did not adopt
a fundamental rights approach to evaluate the constitutionality of
post-removal-period detention. It suggested instead that the due pro-
cess inquiry for civil detention is flexible, depending upon the alien’s
status and the justifications for the restraint. The Court noted that it
has upheld civil, or "non-punitive," detention only in those limited
circumstances where the government has provided a "special justifi-
cation" outweighing the individual’s liberty interest:
[G]overnment detention violates [the Due Process] Clause
unless the detention is ordered in a criminal proceeding with
adequate procedural protections, or, in certain special and
narrow non-punitive circumstances, where a special justifi-
cation, such as harm-threatening mental illness, outweighs
the individual’s constitutionally protected interest in avoid-
ing physical restraint.
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Id. at 691 (quotation marks and internal citations omitted). Thus, fol-
lowing the approach of Kim, I evaluate the mandatory civil detention
authorized by § 1226(c) as applied to Welch to determine whether it
is warranted by a "special justification" that outweighs Welch’s con-
stitutionally protected interest in avoiding physical restraint.
III
Before turning to the application of this standard, I think it is
important to closely examine the manner in which the reasoning of
the Zadvydas Court affects our resolution of this case. After conduct-
ing this examination, it becomes clear that the due process principles
upon which the Court relied compel a conclusion that § 1226(c) is
unconstitutional as applied Welch.
A.
At the outset, I note that the majority in Zadvydas rested its consti-
tutional doubt holding in part on the stated ambiguity in the text of
§ 1231(a)(6). Zadvydas, 533 U.S. at 697 (stating that the text and leg-
islative history of § 1231(a)(6) did not provide "any clear indication
of congressional intent to grant the Attorney General the power to
hold indefinitely in confinement an alien ordered removed"). In
§ 1226(c), by contrast, Congress has unambiguously required manda-
tory detention pending removal proceedings. See 8 U.S.C.A.
§ 1226(c)(2) ("The Attorney General may release an alien described
in paragraph (1) only if the Attorney General decides pursuant to sec-
tion 3521 of Title 18" that the alien is a government witness or is
assisting a government investigation (emphasis added)). Moreover,
unlike the detention authorized by § 1231(a)(6), the detention man-
dated in § 1226(c) has an "obvious termination point" — the entry of
a final order of removal.1 Zadvydas, 533 U.S. at 697.
1As is discussed further below, infra at 28, this distinction between
§ 1226(c) and § 1231(a)(6) may be more theoretical than actual, in that
§ 1231(a)(6) also contains a clearly-defined termination point — actual
removal. Neither statute, however, contains any safeguards to ensure that
the "obvious termination point" will ever occur.
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While Zadvydas arguably is distinguishable on these grounds, we
can glean some important constitutional principles from the reasoning
of both the majority and dissenting opinions that bear on the resolu-
tion of Welch’s constitutional challenge to § 1226(c). First, each sepa-
rate opinion emphasized that the alien’s legal status controls the
extent of due process protections afforded the alien. See Zadvydas,
533 U.S. at 693-94 (holding that the alien’s status is critical to the
constitutional inquiry and distinguishing between an "excluded" alien
and a removable alien for purposes of the Fifth Amendment); id. at
703 (Scalia, J., dissenting) (equating removable aliens with excluded
aliens and stating that neither has a constitutional "right to release into
this country"); id. at 720 (Kennedy, J., dissenting) ("[I]t must be made
clear these aliens are in a position far different from aliens with a law-
ful right to remain here. They are removable, and their rights must be
defined in accordance with that status."). Additionally, in light of the
Zadvydas majority’s emphasis on the length of post removal-period
detention in framing its constitutional doubt inquiry, the majority’s
reasoning indicates that due process does not preclude some reason-
able period of detention, but rather due process enters the equation as
detention becomes unreasonably protracted. Zadvydas, 533 U.S. at
699 ("[I]nterpreting the statute to avoid a serious constitutional threat,
we conclude that, once removal is no longer reasonably foreseeable,
continued detention is no longer authorized by statute."); cf. Kansas
v. Crane, 534 U.S. 407 (2002) (holding that, absent an individualized
determination of "lack of control," indefinite civil commitment of a
sex offender violates substantive due process); United States v.
Salerno, 481 U.S. 739, 747 (1987) (upholding pretrial detention, but
stressing "stringent time limitations" derived from the Speedy Trial
Act and the presence of judicial safeguards); Carlson v. Landon, 342
U.S. 524, 545-46 (1952) (upholding temporary detention of alien dur-
ing deportation proceeding while noting that "problem of habeas cor-
pus after unusual delay in deportation proceedings" was not present).
With these background principles in mind, it is important to note
that Welch is a lawful permanent resident, and "[l]awful permanent
residents are the most favored category of aliens admitted to the
United States." Kim, 276 F.3d at 528. Welch and other lawful perma-
nent residents retain their status until they are finally adjudged deport-
able. See 8 C.F.R. § 1.1(p) (2002) (providing that an alien’s lawful
permanent resident status terminates only upon entry of a final admin-
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istrative order of deportation); Nwolise v. INS, 4 F.3d 306, 311 (4th
Cir. 1993) (same). Thus, pursuant to each of the Zadvydas opinions,
one must conclude that lawful permanent residents detained pursuant
to § 1226(c), such as Welch, are entitled to equal, if not greater, con-
stitutional protections than the aliens detained pursuant to
§ 1231(a)(6).
With respect to the Zadvydas majority’s reliance on the potentially
indefinite duration of detention under § 1231(a)(6), the detention
authorized by § 1226(c) suffers from similarly lengthy delays, a dan-
ger that stems not from lack of an identifiable termination point for
the detention, but from the unclear deadline for the occurrence of that
termination point.2 For example, Welch has been incarcerated for one
year and two months pending his removal proceedings, and the Gov-
ernment concedes that there is no likelihood that a final order of
deportation will be entered in the reasonably foreseeable future. Cf.
Frank Trejo, Man wins lengthy deportation battle: INS may appeal
ruling on longtime resident with drug conviction, Dallas Morning
News, Dec. 6, 2001, at 33A (documenting an "eight-year deportation
battle" involving a longtime lawful permanent resident). Moreover, as
with protracted post removal-period detention, the longer an alien is
detained pursuant to § 1226(c) without being subject to a final order
of removal in the reasonably foreseeable future, the less likely it is
that the purpose of the detention is to aid deportation, as opposed to
constituting arbitrary, capricious, or otherwise unlawful detention.
See, e.g., Zadvydas, 533 U.S. at 690 (quoting Jackson v. Indiana, 406
U.S. 715, 738 (1972), for the proposition that where detention’s goal
is no longer practically attainable, detention no longer ‘bear[s] [a] rea-
sonable relation to the purpose for which the individual [was] com-
mitted.").
2Recent inquiries by Congress and the Justice Department have high-
lighted the myriad problems currently facing the INS, including unrea-
sonably lengthy delays in providing services to immigrants and in
enforcing immigration laws. See Juliet Eilperin & Cheryl W. Thompson,
House is Emphatic on INS: Goodbye, Wash. Post, April 27, 2002, at
A27. In part because of these problems, the House of Representatives
recently voted overwhelmingly to restructure the INS, dividing it into
two bureaus that would separately handle services for immigrants and
law enforcement. Id.
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Significantly, there are extensive procedural safeguards attendant
to post-removal-period detention, but the Zadvydas majority found
these safeguards insufficient to save § 1231(a)(6) from constitutional
doubt.3 For example, before the expiration of the 90-day removal
period, the INS provides for a review of the alien’s record to deter-
mine whether the alien can present sufficient evidence in support of
release. 8 C.F.R. § 241.4 (2001); 8 C.F.R. § 241.4(h). After the 90-
day removal period has expired, the INS conducts a custody review
where it considers whether the alien should remain in detention,
§ 241.4(k)(2)(ii); § 241.4(i)(1)-(3), considering factors such as "the
detainee’s criminal conduct and criminal convictions," and "[t]he like-
lihood that the alien is a significant flight risk," § 241.4(f). Mandatory
evaluations of continued detention are then given each year, and the
INS has the discretion to review the alien’s detention more frequently
if requested.4 § 241.4(k)(2).
No such procedural safeguards exist in § 1226(c). The categorical
bar against bail in § 1226(c) does not provide a time period for review
3Justice Kennedy’s dissent relied upon these safeguards, which are
absent in § 1226(c), to conclude that the detention authorized by
§ 1231(a)(6) was undoubtedly constitutional and, therefore, that there
was no reason for the majority to refuse to give effect to Congress’s
clearly-stated intent. Zadvydas, 533 U.S. at 721 (Kennedy, J., dissenting)
("Whether a due process right is denied when removable aliens who are
flight risks or dangers to the community are detained turns, then, not on
the substantive right to be free, but on whether there are adequate proce-
dures to review their cases . . . .").
4Similarly, in Carlson v. Landon, 342 U.S. 524 (1952), the Supreme
Court upheld a due process challenge to a pre-IIRIRA provision govern-
ing detention of members of the Communist party pending removal pro-
ceedings, see Internal Security Act of 1950, § 23, formerly codified at 8
U.S.C.A. §§ 137 et seq. (the Act or the Internal Security Act), relying
heavily on the individualized nature of the inquiry, as well as the discre-
tion vested in the Attorney General, as central to its conclusion that the
denial of bail was not violative of the Fifth Amendment. Id. at 539 ("Of
course[,] purpose to injure could not be imputed generally to all aliens
subject to deportation, so discretion was placed by the 1950 Act in the
Attorney General to detain aliens without bail."); id. at 541-42 ("There
is no evidence or contention that all persons arrested as deportable . . .
for Communist membership are denied bail.").
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of detention or for conducting a deportation hearing, it does not con-
template any individualized inquiry, and it does not allow for the
exercise of any discretion whatsoever in determining whether contin-
ued detention is reasonable. Thus, § 1226(c) presents at least as strong
a threat as § 1231(a)(6), in the form of detention lacking adequate
procedural safeguards, to the liberty interest in question.
Despite the constitutional status of a lawful permanent resident, the
indeterminancy of detention pending removal proceedings, and the
absence of any procedural safeguards to monitor the reasonableness
of continued detention, the Government argues that we must give
effect to clearly-stated Congressional intent authorizing mandatory
detention under § 1226(c). Although we are required to give effect to
Congress’s clear intent, we also are obligated to enforce the constitu-
tional limitations on indeterminate detention recognized in Zadvydas.
To this end, Zadvydas requires us to determine whether the Govern-
ment has set forth a sufficiently strong "special justification" for inde-
terminate mandatory detention of lawful permanent residents pursuant
to § 1226(c).
The Government asserts that mandatory detention is justified,
regardless of its length or the status of the alien, due to the risks of
flight and dangerousness to the community posed by criminal aliens
facing deportation proceedings. As noted in Kim, the factual and legal
bases underlying the Government’s presumption that criminal aliens
subject to deportation are overwhelmingly likely to flee are question-
able, and such a presumption is even less reasonable when applied to
a lawful permanent resident with significant ties to the community.5
Kim, 276 F.3d at 532 (detailing flaws in report upon which the INS
relies to argue that 89% of "nondetained" aliens flee and noting that
removal is not "virtually certain" once removal proceedings have
5Indeed, the INS itself "has questioned the wisdom and efficacy of
[mandatory detention under] § 1226(c), and has brought to Congress’
attention the need for alternative means of ensuring that aliens appear for
their removal proceedings." Kim, 276 F.3d at 534-35 (citing Immigration
and Naturalization Oversight Hearings on INS Reform: Detention Issues,
Before the Subcomm. On Immigration of the Senate Judiciary Comm.,
Testimony of INS Commissioner Doris Meissner, available at 1998 WL
767401 (F.D.C.H.) (Sept. 16, 1998)).
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begun). Moreover, in light of the range of offenses subjecting an alien
to deportation, the Government is unable to demonstrate that every
person who has been convicted of one of the offenses subjecting him
to deportation poses a particularly severe, ongoing danger to the pub-
lic sufficient to justify indeterminate detention.6 See, e.g., Zadvydas,
533 U.S. at 692 ("[T]he alien’s removable status itself . . . bears no
relation to a detainee’s dangerousness."); Kim, 276 F.3d at 534
("Given the range of crimes qualifying as aggravated felonies, the
government simply cannot show that § 1226(c) covers only aliens
who pose an especially serious danger to the public."); compare Kan-
sas v. Hendricks, 521 U.S. 346, 368 (1997) (upholding scheme that
imposes detention upon "a small segment of particularly dangerous
individuals" and provides "strict procedural safeguards"); Carlson,
342 U.S. at 538 (noting that members of Communist party were
believed to be involved in ongoing activities that threatened the coun-
try’s national security), with Foucha v. Louisiana, 504 U.S. 71, 81-83
(1992) (striking down insanity-related detention system that placed
burden on detainee to prove nondangerousness).
The rigidity of § 1226(c)’s detention scheme, as compared with the
scheme rejected by the Zadvydas Court on the basis of constitutional
doubt, combined with the constitutional status of a lawful permanent
resident, compels me to conclude that § 1226(c) is unconstitutional to
the extent that it authorizes, without special justification, indetermi-
nate or unreasonably protracted detention of lawful permanent resi-
dents, such as Welch, pending removal proceedings. In the interest of
giving effect to clearly-stated congressional intent to the maximum
extent permitted by the Due Process Clause and to aid habeas courts
in evaluating the constitutionality of continued detention of lawful
permanent resident aliens, I believe that the appropriate course is to
recognize a presumptively reasonable period of pre-removal period
detention for lawful permanent resident aliens, as the majority did in
Zadvydas with respect to post-removal-period detention. Because the
6For instance, a lawful permanent resident is rendered deportable by
committing the crime of attempting to evade federal taxes, where "the
revenue loss to the Government exceeds $10,000." See 8 U.S.C.A.
§ 1101(a)(43)(M)(ii). While I do not question the gravity of this offense,
I question whether one convicted of such an offense invariably poses an
ongoing danger to the public.
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Zadvydas majority concluded that detention beyond a six-month
period is presumptively unreasonable after a final order of removal is
entered, I believe that the same presumption, which was predicated
upon due process,7 should apply to evaluate the reasonableness of
detention for lawful permanent residents who have not yet been
deemed removable. See Zadvydas, 533 U.S. at 699 ("The basic fed-
eral habeas corpus statute grants the federal courts authority to answer
th[e] question" of whether the detention exceeds "a period reasonably
necessary to secure removal."); id. ("In doing so the courts carry out
what this Court has described as the "historic purpose of the writ,"
namely "to relieve detention by executive authorities without judicial
trial.").
B.
To provide guidance, and cognizant of the need for a uniform rule
in this circuit, cf. Zadvydas, 533 U.S. at 701 (adopting the six-month
7As noted above, supra at 26, whereas section 1231(a)(6) was deter-
mined to be ambiguous with respect to the Attorney General’s "power to
hold indefinitely in confinement an alien ordered removed," Zadvydas,
533 U.S. at 697, the text of section 1226(c) plainly mandates detention
pending entry of a final order of removal. Nevertheless, as Justice Ken-
nedy noted in his dissent, the six-month presumptive period that was read
into § 1231(a)(6) by the Court "bears no relation to the text" of
§ 1231(a)(6). Zadvydas, 533 U.S. at 707 (Kennedy, J., dissenting). In
adopting the six-month presumptive period, the majority did not demon-
strate any "ambiguity in the delegation of the detention power to the
Attorney General." Id. (Kennedy, J., dissenting). Thus, the Court’s adop-
tion of the six-month presumptive period cannot be explained simply by
reference to the stated ambiguity of § 1231(a)(6), but rather reflects seri-
ous doubts regarding the constitutionality of detention beyond the speci-
fied time period of six months. To the extent the presumption lacked
textual grounding and was crafted to comply with due process, one
would assume that due process similarly requires the application of such
a presumption when analyzing a constitutional challenge to § 1226(c)’s
mandatory detention provision. Cf. County of Riverside v. McLaughlin,
500 U.S. 44, 56-58 (1991) (adopting presumption, based on lower court
estimate of time needed to process arrestee, that 48-hour delay in proba-
ble cause hearing after arrest is reasonable, hence constitutionally per-
missible).
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presumption and detailing its operation "for the sake of uniform
administration in the federal courts"), I briefly outline what I perceive
to be the appropriate role of habeas courts in the administration of the
six-month presumption recognized in Zadvydas. In so doing, I note
that it is impossible in this case to address all of the diverse proce-
dural contexts in which habeas courts may be called upon to make a
determination as to whether the Government has established that con-
tinued detention is supported by a constitutionally adequate special
justification. I, like the majority and some habeas courts, find the issu-
ance of a conditional writ of habeas corpus to be an appropriate
means of conducting the inquiry regarding the alien’s ultimate entitle-
ment to bail. See 28 U.S.C.A. § 2243 (authorizing federal courts to
"dispose of [habeas corpus matters] as law and justice require");
Patel, 275 F.3d at 315 ("We will reverse the denial of Patel’s petition
for habeas corpus and remand with directions that Patel be released
from custody unless the government makes a prompt individualized
determination whether the continued detention of Patel is necessary
to prevent risk of flight or danger to the community."); see also Kim,
276 F.3d at 539 (affirming the order of the district court requiring the
INS to conduct a bail hearing for Kim). Thus, I believe the best
approach is for the habeas court to evaluate whether the lawful per-
manent resident has met his burden of establishing in the habeas peti-
tion that he has been detained for at least six months and "that there
is no significant likelihood" of being subject to a final order of
removal "in the reasonably foreseeable future." Absent a response
from the Government establishing on its face that the Government has
a special justification for the alien’s continued detention, the Govern-
ment would then have the opportunity at a bail hearing before an
immigration judge to introduce evidence demonstrating that the
alien’s continued detention is warranted and is neither arbitrary nor
capricious.8 Accordingly, upon finding that an alien has been held for
8For example, where the Government has set forth in its response a
supported allegation of participation in terrorism, other dangers to
domestic security, or situations involving sensitive matters of foreign
policy, the habeas court may determine that a bail hearing is unneces-
sary. These examples are not meant to be exhaustive; there might be
other situations where, despite the fact that the alien has been detained
longer than six months, legitimate concerns arguably justify continued
detention without a bail hearing, as when a statute authorizing mandatory
detention is directed at a particular subset of aliens for whom it would
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more than six months, that the alien is not likely to be subject to a
final order of deportation in the reasonably foreseeable future, and
that additional facts are needed to determine whether the special justi-
fication standard has been met, the habeas court should grant a condi-
tional writ of habeas corpus releasing the alien unless the INS
provides the alien with a bail hearing before an immigration judge to
determine whether continued detention is necessary.9
Although the exact parameters of the Zadvydas holding are unclear,
the approach that I have suggested gives effect to clearly-stated con-
gressional intent to the extent permissible under the Due Process
Clause by ensuring that a criminal alien’s detention is incident to
deportation, as opposed to arbitrary or capricious, while recognizing
that habeas review must "take appropriate account of the greater
immigration-related expertise of the Executive Branch, of the serious
administrative needs and concerns inherent in the necessarily exten-
sive INS efforts to enforce this complex statute, and the Nation’s need
be reasonable to presume flight risk or dangerousness, or when a bail
hearing would involve the disclosure of classified or sensitive informa-
tion. Although classified or sensitive information presumably could be
kept confidential by sealing documents and closing immigration hearings
to the public, as the Government continues to seek increased secrecy in
immigration proceedings involving immigrants detained pursuant to the
September 11 attack investigation, a debate has ensued as to whether,
and under what circumstances, such secrecy is warranted. See, e.g.,
Detroit Free Press v. Ashcroft, Nos. 02-70339, 02-70340, 2002 WL
534475, ___ F. Supp.2d ___ (E.D. Mich. April 3, 2002) (holding that
immigration hearings may not be closed to the press or the public); Steve
Fainaru, U.S. Bans the Release of Detainees’ Names, Wash. Post, April
9, 2002, at A10 (detailing the Justice Department’s "resolve to keep
secret information about the detainees despite a growing number of legal
challenges from civil liberties groups.").
9I do not suggest that the district court, which did not have the benefit
of Zadvydas’s reasoning at the time it considered Welch’s habeas peti-
tion, acted improperly when it directed the immigration judge to conduct
a bail hearing for Welch without first evaluating the competing burdens
of proof set forth in Zadvydas. Rather, I simply set forth my view of the
more appropriate framework in light of the Supreme Court’s approach in
Zadvydas.
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to ‘speak with one voice’ in immigration matters." Zadvydas, 533
U.S. at 700. In the end, "courts must take appropriate account of such
concerns without abdicating their legal responsibility to review the
lawfulness of an alien’s continued detention." Zadvydas, 533 U.S. at
700.
IV
Turning to an evaluation of the constitutionality of Welch’s contin-
ued detention pursuant to this framework, Welch established that he
was detained for over a year pending his removal proceedings. Addi-
tionally, Welch was successful in having the aggravated felony for
which he originally was subject to deportation stricken from his record,10
and at least one immigration judge in this case has found it likely that
Welch will successfully achieve naturalization, meaning that Welch
has demonstrated that there is "no significant likelihood of removal
in the reasonably foreseeable future." Zadvydas, 533 U.S. at 701.
Indeed, as the majority notes, ante at 18, the Government concedes
that Welch’s removal is unlikely to occur because naturalization prob-
ably will succeed. Further, it is undisputed that Welch, as a longtime,
lawful permanent resident and Navy veteran, is not a flight risk and
is not a danger to society.11 Accordingly, Welch has established that
his continued confinement is presumptively unreasonable, and the
Government has not responded with evidence sufficient to rebut this
10The Government now takes the position that Welch’s firearms-
related misdemeanor conviction renders Welch deportable, but the Gov-
ernment agrees that the fact that the aggravated felony was stricken from
Welch’s record renders him eligible for cancellation of removal proceed-
ings by the Attorney General. See 8 U.S.C.A. § 1229b(3).
11To the extent the majority suggests that flight risk is not enough,
standing alone, to justify detention pending removal proceedings, ante at
20, I respectfully disagree. See, e.g., Salerno, 481 U.S. 739, 749
("[R]espondents concede and the Court of Appeals noted that an arrestee
may be incarcerated until trial if he presents a risk of flight."); Zadvydas,
533 U.S. at 722 (Kennedy, J., dissenting) ("It is neither arbitrary nor
capricious to detain the aliens when necessary to avoid the risk of flight
or danger to the community."); Kim, 276 F.3d at 535 (stating that an indi-
vidualized determination of flight risk would be sufficient to justify
detention pending removal proceedings).
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presumption. Given the unusually strong equities in Welch’s favor, I
have no difficulty concluding that his mandatory, unreasonably
lengthy detention pending the entry of a final order of removal vio-
lates due process and, therefore, that the district court acted properly
by granting Welch a writ of habeas corpus.
V
In sum, although I agree with the result reached by my esteemed
colleagues, my separate opinion is written in an attempt to define with
greater precision the extent to which the constitutional principles
underlying the Supreme Court’s decision in Zadvydas compel the
conclusion that § 1226(c)’s mandatory detention scheme is unconsti-
tutional as applied to Welch. Accordingly, for the reasons set forth
above, I respectfully concur in the judgment.
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